Background of This Rule
- DHS has submitted this rule to OMB as Interim Final Rule
- This regulation has been on the regulatory agenda for many years
- It first appeared in Fall 2017
- It continued to appear in every other regulatory agenda, since then
- It was seen in Spring 2018, Fall 2018, Spring 2019, Fall 2019, and recently Spring 2020 agendas
- It has been on Trump’s Agenda since 2017, just did not emerge due to COVID
What do We Know About the Proposed Rule?
- It is not yet published for the public to comment or review
- Only the basic details required to be in the regulatory agenda are available
- DHS proposes to revise the definition of specialty occupation for the H1B Program
- DHS would like to increase focus on getting the best and brightest foreign nationals using the H1B program
- The definition of employment and employer-employee relationship will be revised to better protect US workers and their wages
- H1B program will have additional requirements so that employers pay H1B employees appropriately as per H1B wage levels and prevailing wage
Please note: The Rule is in Interim Final Stage, OMB review Status
What is the Significance of the Interim Final Stage?
- Ideally, the rulemaking process consists of 9 steps
- However, not all rules can withstand that level of scrutiny, the majority of the proposed rules get stuck in between the interim and final stage
- Sometimes, depending on the kind of rule-based on aspects like an unnecessary burden, impracticable or contrary to public interest Interim Final Rule is published without going through proposed rule stages
- In such cases public comments are allowed after the rule is published and the agency can revise the rule based on public comments as needed
- If the agency does not make any changes to the interim rule, they can publish the final rule to the federal register
- This moving to Interim Final rule stage is usually done by an agency if there is a good cause that is justifiable by that agency
What is OMB Review Status?
- OMB is a short form for the Office of Budget and Management(OMB)
- OMB plays a critical part in conducting a regulatory review
- OMB often look at the economic impact
- If a rule is classified as ‘major’ or ‘economically significant’, then OMB reviews it in detail
Please note: It was considered “Economically Significant” and now that has changed to “NOT Economically Significant”
Is Such Erratic Step Jumping in rule Making Process Constitutional?
- In the federal rulemaking process, the change of the stage from “Proposed Rule” to “Interim Final Rule” has to be justified
- In the ‘strengthening H1B program’ rule case, DHS is bypassing the stage of seeking public comments and review of the rule by public
- Unless DHS can justify the reason to bypass these steps, this will attract a lot of legal challenges.
- The issue of moving the stages without public comment and classifying as not economically significant is really controversial
- This will be subject to review
- Many employers, agencies, or attorney groups can file a Lawsuit against DHS for this
- Also, the agency head can be sued too
- if they do anything that is not compliant as per regulations, this would be challenged in court and they will end up losing in court
What is the New Guideline for H-1B Employer-Employee Relationship?
- As per the new H1B policy memo, USCIS will consider an H1B Sponsor to have an employer-employee relationship, if they meet one of the four things – Hire, Pay, Fire, Supervise or Control the work
- This was previously interpreted wrongly and USCIS used to ask that they should have the right to control work at the client site and denied H1B petitions on that ground
- Employers were required to submit client letters, contract, work order documents in the past to prove the employer-employee relationship
How Do I Qualify to Perform Services in a Specialty Occupation?
For you to qualify to perform services in a specialty occupation you must meet one of the following criteria:
- Hold a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
- Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree required by the specialty occupation from an accredited college or university
- Hold an unrestricted state license, registration, or certification that authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment
- Have education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty
Should I Try to Move to Canada?
- As mentioned before, there are not many details available about this rule
- You can check the official agenda Item text here.
- Any other information is more of an educated guess by esteemed immigration lawyers or mere speculation
- ” H-1B Specialty Occupation” has been a target of numerous RFE s in the past
- You might reckon, USCIS recently lost a court case against ITServe Alliance that challenged USCIS H1B policy memos on employer-employee relationship and itinerary rules
- Hence, it is too early to make that decision, if you have already invested too much time and money in the USA
our office will be happy to analyze your case’s specifics and provide some suggestions, as every situation is different.